Memorandum by Professor John Griffith
FBA
1. The consultation paper published in July
2003 by the Secretary of State for Constitutional Affairs and
(pro tem) Lord Chancellor asks the question "Why Change?"
(pp 10-13)
2. The first reason given is that there
is no longer "sufficient transparency of independence"
of the judiciary from the executive and the legislature. For those
who are interested in the relationships, this is manifestly untrue
as is shown by the strongly outspoken criticism by senior judges,
in and out of court, directed against Government policy on sentencing
policy, on the complexity of anti-corruption laws, or the treatment
of asylum seekers and much else; and the angry response of ministers
to this criticism. It would be more accurate to say that today
the independence of the judiciary is more apparent than at any
time since 1688.
3. The consultation paper refers to the
considerable growth in judicial review (itself strong evidence
of transparent independence) as leading to the danger that judges'
decisions could be perceived to be "politically motivated".
Lord Falconer feels so strongly about this that he considers it
essential our systems "do all they can" to minimise
this (transparent) danger.
4. The second reason for change conversely
argues that the Human Rights Act 1998 has made "people"
more sensitive and aware of the position of the highest court
being situated within Parliament. Yet the Act has greatly increased
rather than diminished the authority of the judiciary and emphasised
the independence of senior judges.
5. The third reason given for change asserts
that people do not always understand that non-judicial members
of the House do not sit with the Law Lords on judgment nor that
Law Lords refrain from getting involved in political issues likely
to give rise to litigation. No evidence is given to support this.
I have never met anyone who demonstrated such misunderstandings.
6. The fourth reason for change is that
the Lord Chancellor may sit as a member of the Appellate Committee,
thus compromising the independence of the Law Lords. There are
good reasons for abandoning this practice but they do not justify
abolishing the office of Lord Chancellor.
7. The fifth reason for change is said to
be the fact that the Law Lords are a Committee of the House of
Lords. In his public lecture on 1 May 2002, Lord Bingham said
"to modern eyes it was always anomalous that a legislative
body should exercise judicial power". There is a suggestion
here of E P Thompson's reference to "the enormous condescension
of posterity". But the objection to the argument goes much
deeper.
8. The so-called "anomaly" encapsulates
all that is misleading about the doctrine (by Blackstone out of
Montesquieu) of the separation of powers, by confusing institutions
and functions. The three great institutions that determine the
shape of the working constitution are the Government, the Houses
of Parliament, and the Judiciary. Each of these institutions has
executive, legislative, and judicial functions. Most obviously
Governments have a whole range of judicial functions, deciding
disputes, often after hearings, for example between local planning
authorities and individuals on the merits, and even the legality,
of proposals. Legislation is a primary function of Governments,
often but not always, subject to Parliamentary approval. Each
House of Parliament acts judicially in disciplining its members
and, executively, in the enforcement of its rules. More to the
present point, I am sure Lord Bingham would not describe as anomalous
the development by the courts of the common law, a legislative
function of huge importance to both private and public law. The
House of Lords as part of the High Court of Parliament has exercised
judicial powers for centuries. The working constitution is a complex
piece of machinery which depends on a commixture of functions,
not their separation. There is no anomaly.
9. The Royal Commission on the Reform of
the House of Lords (2000) concluded that, given the effective
separation of the appellate work from the other functions of the
second chamber, the present arrangements did not undermine the
independence of the judiciary or public confidence in judges.
10. The status and influence of the Law
Lords are enhanced not diminished by their membership of Parliament.
Although their role in the House of Lords is limited by their
need to ensure that their participation does not conflict with
their judicial responsibilities, this has not presented practical
problems. As peers, they are near the centre of political activity.
Lord Bingham has said:
There are those who feel, quite strongly, that
it is a positive advantage for judges at the highest level to
have some exposure to the process of legislation and the conduct
of government, an experience in much shorter supply with the decline
of political appointments to the bench.
Lord Bingham disagrees with this view on the
ground that the Law Lords "do not belong in a House to whose
business they can make no more than a slight contribution".
I find his view unpersuasive.
11. The independence of the Law Lords is
also said to be enhanced by the abolition of the office of Lord
Chancellor. This disabling move significantly shifts the balance
between the executive and the judiciary. It replaces the Lord
Chancellor's role of presenting the views of the judges by a Secretary
of State for Constitutional Affairs who will not be head of the
judiciary, may not be a lawyer, and is not likely to be a prominent
member of the Cabinet.
12. The net effect of these proposals is
to weaken the position of the senior judges and their influence
on the day-to-day administration of public affairs. To seek to
achieve this by arguing that the purpose is to protect and promote
their independence is dubious.
13. The heart of the matter is that while
the senior judges are not part of the machinery of the Government,
they are part of the machinery of government. They are crucial
to the maintenance of law and order; uphold as well as restrain
the exercise of governmental powers; they conduct inquiries and
chair commissions which frequently concern policy decision of
Ministers or civil servants. Like it or not, they are political
animals, often being specifically required, in and out of the
courts, to decide where the public interest lies. However much
we may disagree with any particular decisions of their making
they should not be pushed towards corporate isolation. To exclude
the most senior judges from the political arena is seriously to
weaken that commixture of powers which is the vital ingredient
of our constitution.
7 April 2004
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